Zapata v. Ricketts et al

Filing 22

MEMORANDUM AND ORDER granting 8 defendants' MOTION to Dismiss ; Zapata's complaint 1 is dismissed and no repleading will be allowed; denying 16 defendants' MOTION for Sanctions . A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN ZAPATA,
Plaintiff,

4:17-CV-3076

vs.
MEMORANDUM AND ORDER
PETE RICKETTS, Governor of the
State of Nebraska; and DOUG
PETERSON, Attorney General of the
State of Nebraska,
Defendants.
The plaintiff, John Zapata, has sued Nebraska Governor Pete Ricketts
and Nebraska Attorney General Doug Peterson under 42 U.S.C. § 1983.
Filing 1. The defendants move to dismiss the plaintiff's pro se complaint for
lack of subject matter jurisdiction under the Rooker-Feldman doctrine (filing
8), and for monetary sanctions under Fed. R. Civ. P. 11 (filing 16). For the
reasons discussed below, the defendants' motion to dismiss will be granted,
and the motion for sanctions denied.
This dispute arises from a separate state court action between Zapata
and a Nebraska recycling company for an alleged breach of a lease
agreement. In that case, Zapata accused the recycling company of
abandoning property it had leased from Coljo Investment LLC, resulting in
lost rent and property damage. Filing 9-1. Coljo Investment had assigned its
claim under the lease agreement to Zapata, who pursued the action pro se.
The state district court dismissed Zapata's complaint in a May 16, 2016
Order, relying in part on Neb. Rev. Stat. § 7-101. See filing 9-2. That
provision prohibits a pro se litigant from "practic[ing] as an attorney or

counselor at law" in any proceeding to which he is not a party. And because
Zapata was not a party to the underlying lease agreement, the court
determined that he could not proceed on the claim without licensed counsel.
Filing 9-2 at 2-3. The court rejected Zapata's argument that he was
representing himself through a valid assignment, as opposed to the lessorLLC as the owner of the property. See filing 9-2 at 2. The Nebraska Supreme
Court affirmed, holding that "[w]hen an assignee brings suit in his or her own
name, the assignee is still bound by the [assignor] business entity's limitation
that any legal action arising out of its interests must be represented by
counsel." Zapata v. McHugh, 893 N.W. 2d 720, 728 (Neb. 2017).
That decision resulted in the underlying complaint, in which Zapata
has sued Nebraska's governor and attorney general. Filing 1. As discussed
above, Zapata alleges that the Nebraska Supreme Court's decision in Zapata
v. McHugh violates his constitutional right to self-representation by denying
him the opportunity to "defend[] himself in a civil action . . . [regarding]
property previously owned by a corporation." Filing 1 at 3. Zapata asks this
Court to "reverse the decision of the Nebraska Supreme Court on the basis
that [it] violates the constitutional rights of the Plaintiff." Filing 1 at 3.
The defendants characterize Zapata's complaint as an attempt to
"invalidate an order of the Nebraska Supreme Court." Filing 9 at 6. So, they
argue, the Court lacks jurisdiction over the dispute pursuant to the RookerFeldman doctrine. See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). That doctrine holds that federal
district courts lack subject matter jurisdiction over cases "brought by statecourt losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court

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review and rejection of those judgments." Shelby Cty. Health Care Corp. v. S.
Farm Bureau Cas. Ins. Co., 855 F.3d 836, 840 (8th Cir. 2017).
The Court agrees that dismissal is warranted under the RookerFeldman doctrine. Indeed, this is not a case in which Zapata raises
"independent claim[s]" as to avoid jurisdictional impediments, or "targets as
unconstitutional" a Nebraska statute as construed by the state's highest
court. Skinner v. Switzer, 562 U.S. 521, 532 (2011). Rather, the complaint
expressly challenges a Nebraska Supreme Court decision, claiming that it
violates the plaintiff's constitutional right to self-representation. Filing 1 at
2-3. In that way, Zapata seeks what is, in substance, federal appellate review
of a state court judgment. Johnson v. De Grandy, 512 U.S. 997, 1005-06
(1994). And that, this Court cannot, and will not, do. Exxon Mobil Corp., 544
U.S. at 283. Accordingly, the defendants motion to dismiss (filing 8) will be
granted.
The defendants also move for monetary sanctions under Fed. R. Civ. P.
11 (filing 16), noting that they (i.e., the governor and attorney general) "had
[no] involvement in the underlying actions or the Nebraska Supreme Court
ruling." Filing 17 at 3. To that end, the defendants suggest that Zapata filed
his complaint for an improper purpose, such as to harass the defendants or
"increase [] the cost of litigation." Filing 17 at 4. But there is no evidence, in
the complaint or otherwise, of a bad faith intent on the part of Zapata. And it
cannot be said that his understanding (or lack thereof) of complex federal
abstention doctrines borders on the frivolous. Accordingly, the defendants'
motion for Rule 11 sanctions will be denied.
As a final matter, Zapata requests leave to amend his complaint in the
event it is dismissed under Rule 12(b)(1). Filing 21 at 7. But that request
does not comply with the local rules, which require the moving party to "file

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as an attachment to [a] motion an unsigned copy of the proposed amended
pleading." NECivR 15.1(a); see U.S. ex rel. Raynor v. Nat'l Rural Utilities Coop. Fin., Corp., 690 F.3d 951, 958 (8th Cir. 2012). Thus, because Zapata has
neither filed a motion nor attached a proposed amended pleading, his request
to amend his complaint is denied.
IT IS ORDERED:

1.

The defendants' motion to dismiss (filing 8) is granted.

2.

Zapata's complaint is dismissed, and no repleading will be
allowed.

3.

The defendants' motion for sanctions (filing 16) is denied.

4.

A separate judgment will be entered.

Dated this 23rd day of January, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

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